Fussing at clients so the family court judge won’t

Often my family court clients complain that I am not “taking [their] side” because I fuss at them regarding their behaviors. These clients are accurate in their assessment. This is especially true when my client is involved in a domestic case in which the contested issues involve a great deal of judicial discretion–typically child custody and alimony. My belief is that it’s my job to fuss at my clients so that the family court judge won’t have to.

For clients seeking custody, there are myriad changeable behaviors that can cause them to do better–or worse–in custody litigation and ultimately at trial. “Immoral” sexual conduct (however the court is currently defining that term), substance abuse issues, and untreated or improperly treated mental health problems are frequent factors in custody determinations. There are numerous other behavioral issues that a client can change and that can greatly impact custody determinations. Obtaining suitable housing to raise children (while understanding that clients must live within their budget); exhibiting a cooperative versus a confrontational attitude towards the other parent; making sure the children’s medical, education and social needs are taken care of; demonstrating a commitment to parenting (while understanding that most clients need employment to pay their ongoing expenses and are entitled to some life outside of raising children): all are behaviors or actions a client can change that increases (or decreases) the likelihood of success in custody cases. Even such simple things as stopping smoking or committing to a better diet and regular exercise can affect custody. In alimony cases, sexual conduct, modesty in budgeting, and diligence in seeking and maintaining gainful employment can greatly affect the ultimate alimony award.

When I observe clients engaging in behaviors or actions that decrease the likelihood of success in achieving their goals, or when I note behaviors or actions that clients could start doing to increase that likelihood of success, I believe it’s professional duty, as a “counselor at law,” to let these clients know what they might do to strengthen their chance of success. Since humans have a tendency to resist change, especially change they don’t want to make, clients don’t like hearing these suggestions and often need to be reminded or slightly nudged towards making suggested (sometimes necessary) changes. A substance abusing client is not going to get custody and it’s malpractice to let such clients think otherwise. Thus, I fuss at many of my clients; and they know it and rarely like it.

On the other hand, it’s been years since a client of mine has been admonished by a family court judge for a behavior or action that I hadn’t warned would cause that client trouble. Still, my clients are frequently admonished by family court judges for engaging in behaviors or actions that I had warned would cause them problems in family court. Almost always this admonishment comes directly before my client hears a ruling in which the clients’ goals are not achieved. While I could take a certain smug satisfaction in hearing my clients get the same lecture from a family court judge that I had previously given, their sudden epiphanies that my warning was prescient and that my fussing had been with the goal of helping them achieve their goals give me no pleasure. As an attorney, my pleasure comes from helping my client achieve their goals: losing is never satisfying.

So clients who wonder why their family court attorney is fussing at them: it is because their attorney is not merely an advocate but a counselor at law. And any family court client who is never fussed at by his or her attorney is either the perfect client–since I’m not a perfect attorney, I have no hope of being retained by perfect clients–or is not being given proper guidance.

Good family court attorneys fuss at their clients so that the family court judge won’t.